Nickens v. State, 58023

• Decision Date: 11 March 1974
• Docket Number: No. 2,No. 58023,58023,2
• Citation: 506 S.W.2d 381
• Parties: Earl Eugene NICKENS, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 381

506 S.W.2d 381

Earl Eugene NICKENS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 58023.

Supreme Court of Missouri, Division No. 2.

March 11, 1974.

Cupples, Cooper & Haller, Inc., Albert J. Haller, Gary H. Sokolik, Clayton, for movant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

FINCH, Judge.

This is an appeal from a denial of appellant's motion under Rule 27.26 ¹ to vacate a judgment and sentence of life imprisonment for murder in the first degree. This appeal was pending in this court on April 9, 1973, the date of our decision in Parks v. State, 492 S.W.2d 746 (Mo. banc 1973), and this case is retained for decision pursuant to our order dated April 9, 1973. We affirm.

In 1963 appellant was indicted for first degree murder. Allegedly, he robbed a grocery store and in the course of his subsequent flight by automobile he shot and killed a police officer. He was tried pursuant to § 559.010, RSMo 1959, V.A.M.S.

Appellant's first trial resulted in a mistrial. Tried again, he was convicted and sentenced to death. On appeal, that conviction was reversed for prejudicial argument by counsel for the state. State v. Nickens, 403 S.W.2d 582 (Mo. banc 1966). On retrial in 1967 appellant was convicted and sentenced to life imprisonment.

On November 16, 1967, appellant appeared with counsel and waived his right to file a motion for new trial and his right to take an appeal. On that occasion he took the stand and was interrogated extensively by his counsel and by the court with reference to his proposed waiver and his understanding of the effect thereof. He stated that he understood that if he now waived a motion for new trial and a direct appeal, he could not change his mind and attack the alleged errors at a future time. On the same occasion that he waived his motion for new trial and appeal and was sentenced on the first degree murder charge, he also entered a plea of guilty to a separate charge of robbery in the first degree with a dangerous and deadly weapon. He received a separate consecutive life sentence in that case.

On February 16, 1971, action pro se, appellant filed under Rule 27.26 a motion to vacate both of the life sentences imposed on November 16, 1967. Counsel was appointed and thereafter he filed a first amended motion to vacate. With reference to the judgment and sentence in the first degree murder case, paragraph 6 of the amended motion alleged the following grounds for relief: (a) The indictment on which appellant was convicted was defective; (b) coerced confessions and admissions by appellant were received in evidence; (c) certain items which were the product of an unlawful search and seizure were received in evidence; (d) the submission of the case against defendant on the basis of the felony murder rule was prejudicially erroneous; and (e) the denial of appellant's motion to dismiss the indictment was error in that the state procured a second indictment by abuse of the grand jury process in order to avoid a court order against striking certain names endorsed on the first indictment.

Subsequently, the motion was amended further by adding paragraph 6(f) which alleged that the appellant's waiver of his right to attack the judgment and sentence was coerced and not voluntary.

An evidentiary hearing on the motion to vacate was scheduled for April 19, 1972. At that time appellant and his counsel appeared and advised the court that they desired to limit their motion to the judgment and sentence in the first degree murder case and that they were amending the first amended motion so as to eliminate those allegations seeking to set aside the judgment and sentence for first degree robbery.

Next, appellant and his counsel advised the court that they were dismissing and withdrawing paragraph 6(f) wherein appellant had alleged that his waiver was coerced and not voluntary and that they would offer no evidence thereon. However, counsel for appellant indicated a desire to proceed with evidence in support of the asserted constitutional violations contained in paragraph 6(a) to (e), inclusive. The court took the position that appellant had waived his right to a review of these constitutional issues unless it was established by appellant that his waiver of his right to file a motion for new trial and to take an appeal did not amount to a knowing and voluntary waiver. Considerable discussion between the court and counsel ensued, including the following:

'THE COURT: Are you taking the position, Mr. Haller, that no intelligent person can voluntarily and knowingly waive his right to a review of constitutional rights?

'MR. HALLER: Yes, Your Honor, I believe that the Constitution requires that the person has that right to review even if he has voluntarily waived it.

'THE COURT: Well, of course, I don't think that's the law. I don't think that's the law. Because if that were so then every plea of guilty, every waiver of appeal, would require an appeal anyway or a review to see whether the Constitution has been fully complied with.

'MR. HALLER: It probably gets down to the issue of whether a person who is a non-lawyer is competent to make an intelligent determination as to violations of constitutional rights, and it would be our position that Mr. Nickens at the time may have voluntarily waived the right but not knowingly because he was not fully aware--

'THE COURT: That's involved in your knowingly and intelligently and voluntarily waiving his appeal and--or entering his plea of guilty. I mean if he--one of the things that is included in that is the knowledge of his constitutional rights. For instance, a person has a constitutional right to a trial by jury. Before he can knowingly and voluntarily waive his right he must be advised and realize he's waiving his right to a trial by jury. A person has a constitutional right to hear the witnesses testify against him and be confronted with the witnesses. Before he can voluntarily and intelligently waive that right, he must be aware of the right. Now, so, the only issue involved here is whether Mr. Nickens was aware of any possible constitutional rights violations when he waived his appeal. Now, if you want to put on evidence with respect to that then we're getting back into that his--to the question of whether he knowingly and understandingly and voluntarily waived his appeal. If you want to say that he didn't--include that he did not understand that he was waiving his constitutional rights involved in this trial, well, then that's a different proposition. I'll hear you on that. I'll hear evidence on that. But, as I understand you wish to waive that. If he understandingly and knowingly when he waived his appeal was waiving any grounds to attack the constitutional basis of his trial in doing so and it's pretty hard to believe that the evidence would support him on that because as I understand most of these allegations set out here were allegations taken right directly from the brief on the first trial, so he must have known that these issues were available to him.

'MR. HALLER: At this point, Your Honor, if I might have leave to discuss this matter further with Mr. Nickens--

'THE COURT: I think you ought to do so. I think you ought to seriously--if you're going to stand upon the point that his constitutional rights have been violated, then the only issue before this court is whether when he waived his notice of appeal he had been advised of these constitutional rights and he had been thoroughly--understood that they existed, and was aware that he had raised them on his first appeal, and that was advised that they--he still had a chance to raise them on the second appeal if he undertook to do that. You better talk to him about it. We'll take a ten-minute recess.

(At this time a temporary recess was taken, after which recess the following proceedings took place:)

'THE COURT: Mr. Haller, have you had an opportunity to talk to Mr. Nickens?

'MR. HALLER: Yes, Your Honor, we have, and he still takes the position that he will waive the right to a hearing in regard to the voluntariness.

'THE COURT: Very well.'

Counsel for appellant then advised the court that it was their position that under the provisions of Rule 27.26 as interpreted in Caffey v. State, 467 S.W.2d 857 (Mo.1971), appellant had an absolute right to have these asserted constitutional violations resolved inasmuch as they had not been decided on any previous appeal. In connection with discussion of Rule 27.26, and particularly subsection (b)(3), the following occurred:

'MR. HALLER: * * * The purpose of that provision is to provide a review of constitutional issues where such were not reviewed on appeal. Our position is there was no appeal. The reason for there being no appeal is really beside the point. Under the 27.26 the whole purpose of this 1967 amendment was to give the review of a constitutional issue where there was no appeal, and in this case it's our contention that there was no review of the constitutional issues and, therefore, this is now the forum at which those constitutional issues can be reviewed.

'THE COURT: There was no review of the constitutional issues because the defendant waived the constitutional issues.

'MR. HALLER: But there is no case that would indicate that that would make a difference.'

Subsequently, the court again offered an opportunity to appellant to put on evidence with reference to whether a knowing waiver of constitutional issues occurred. The following discussion appears in the transcript:

'THE COURT: Mr. Haller, I will permit you to present evidence if you wish to present evidence on the issue as to what Mr. Nickens knew at the time he waived his appeal with respect to constitutional issues. If you wish to present evidence on the question--I'm not talking about whether his waiver of his appeal was...